State v. Garnett

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State of M aryland v. Ga rnett, No. 47, September Term, 2004. Criminal Proced ure: Re stitution. Bankruptcy Discharge. An order of restitution in favor of the Maryland State Police that was entered as part of criminal proceedings again st the defendant was a penal sanction to which she was subject, despite a finding of guilty but not criminally responsible. Because the restitution ordered in this case was a criminal sanction, it was n ot disch argable under t he Un ited Stat es Ban kruptc y Code. IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 2004 STATE OF MARYLAND v. JACQUELINE MAE GARNETT Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Wilner, J., concurs Filed: December 22, 2004 In this case we are asked to consider wheth er a writ of g arnishme nt of wag es to enforce an order of restitution in a criminal proceeding is dischargable in bankruptcy. Jacqueline Mae Garnett, the appellee, filed for bankruptcy seeking a discharge of her debts, including a restitution judgment that was entered against her after she had been found g uilty, but not crimina lly responsible, fo r malicious d estruction of property. The S tate sought to enforce the judgment through a writ of garnishment. We conclude that the restitution judgment entered against Garnett was a criminal sanction and therefore a debt not discharg eabl e in b ankruptcy. I. Facts and Procedural History On February 3, 2001, at 3:00 in the morning Garnett drove her Ford Taurus station wagon to the Maryland State Police Barracks in Salisbury, M aryland, and ra mmed in to six cars parked behind the barracks by accelerating into one parked car, reversing, and accelerating again into th e next park ed car. Tw o state police officers obse rved Ga rnett driving her car i nto the p arked v ehicles a nd arre sted he r at the sc ene. Garnett was cha rged with six counts of malicio us destructio n of prop erty1 for the 1 Md. Code (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Art. 27, § 111 stated: (a) Violation constitutes misdemeanor. Any person who sh all wilfully and maliciously destroy, injure, deface or molest any real or personal property of another shall be deemed guilty of a misdemeano r. *** (c) Penalty where amount of damage is equal or greater than $500. If the amount of damage to the property defaced, destroyed, injured, or molested has a value of $500 or more, the (contin ued...) damage she caused to five police cruisers belonging to the Maryland State Police and one privately-owned car belonging to O fficer James M cWilliams ( Mc Williams ). She was also charged with one count of trespass.2 On April 18, 2001, Garnett entered a ple a of n ot gu ilty, as well as a plea of not criminally responsible by reason of insanity, as to all charges against her3 and subs equently filed a motion for a mental examination to determine 1 (...continued) person who violates this section, on conviction, is subject to a fine not exceeding $2,500 or imprisonment not exceeding 3 years or both. Article 27, Section 111 was recodified without substantive change as Md. Code (2002), § 6301 of the Criminal Law Article. 2 Md. C ode (195 7, 1996 R epl. Vol., 200 0 Cum . Supp.), A rt. 27 § 577 stated in part: (a) Trespassing. (1) A pe rson may not enter or trespass on any private property which in a conspicuous matter is posted against trespassers by: (i) Signs where they may reasonably be seen; or (ii) Identifying paint marks that conform with regulations adopted by the Department of Natural Resources and are made on trees or posts at each road entrance a nd adjace nt to public roadwa ys, public wate rways, and any other land adjoining the pro perty. *** (b) Violation of section. A person who violates any provision of this section is guilty of a misdemeanor and on co nviction is subject to a fine of not more than $500 or imprisonment for not more than 90 days or both. Article 27, Section 577 was recodified without substantive change as Md. Code (2002), §§ 6-402 through 6-408 of the Criminal Law Article. 3 A defendant may enter a plea of not criminally responsible pursuant to Maryland Code (1982, 20 00 Rep l. Vol), § 12-109 of the Health-General Article, which states in part: (contin ued...) 2 competency to stand trial and criminal responsibility. She was referred to the Department of Health and M ental Hygien e pursuan t to Maryland Cod e (1957, 2000 R epl. Vol.), Section 12104 of the Health-G eneral Artic le 4 for examination an d evaluation through th e Eastern Shore Hospital Center ( E SHC ), a forensic te am from which d etermined that Garnett was competent to stand trial, but that she w as not crimin ally responsible for her actions because 3 (...continued) (a) Time and manner of pleading. (1) If a defendant intends to rely on a plea of not criminally responsible, the defendant or defense c ounsel sha ll file a written plea alleging, in substance, that when the alleged crime was committed, the defendant was not criminally responsible by reason of insanity under the test for criminal responsibility in § 12-108 of title. Maryland Code (1982, 2000 Repl. Vol.), § 12-108 of th e Health-G eneral Artic le states in part: (a) Test In general. A d efendan t is not crimina lly responsible for criminal conduct if, at the time of that con duct, the defenda nt, because of a men tal disorder or mental retardation, lacks substa ntial capacity: (1) To appreciate the criminality of that conduct; or (2) To conform that condu ct to the requ iremen ts of the law. 4 Md. Code (1 982, 200 0 Repl. Vol.), § 12-104 of the Health-General Article states in part: (a) Examination authorized. (1) For good cause and after giving the defendant an oppo rtunity to be heard, the court may order the Department to examine the defendant to determine whether the defen dant is incom petent to stan d trial. *** (d) Report on examination. (1) If a court orders an examination under this se ction, the D epartmen t shall: (i) Examine the defen dant; and (ii) S end a com plete report o f its findings: 1. To the court; 2. To the State s Attorney; and 3. To the defen se counse l. 3 of a m ental dis order, sp ecifica lly severe d epressio n, at the tim e of the offen ses. Garnett eventually pled guilty to all six charges of malicious destruction of prop erty, after which the trial court found that Garnett was not crimina lly responsible for her actions because of a mental disorder an d ordered her to be conditionally released from the ESHC. After the parties had agreed that restitution would be an entry under Article 27, Section 807, simply the entry of civil judgment, see Md. Code (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Art. 27, §§ 807 (a) and (g),5 the tr ial co urt order ed G arne tt to p ay restitution and stated: [R]estitution will be ordered in the amount of $25,549.74 to James McWilliams. And restitution of $17,170.72 to the Maryland State Police . The amo unt of restitu tion will be 5 Md. Code (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Art. 27, §§ 807 (a) and (g) provided: (a) Restitution upon c onviction, ac ceptance of plea of no lo contendere, etc.; priority of payment; reason for not ordering restitution. (1) A court may issue a judgment of restitution directing a defendant to make restitution in addition to any other penalty for the commission of a crime if: (i) Property of the victim was stole n, da mag ed, d estro yed, converted , unlawfu lly obtained, or its value substantially decreased as a direct result of the crime; *** (g) Same Circuit court. (1) a judgm ent of restitutio n that is issued by a circuit court under this section shall be recorded and indexed in the civil judgment index by the c lerk of the c ircuit court as a money judgment as prescribed by the Maryland Rules. Article 27, Section 807 was recodified, without substantive chang e, as M d. Cod e (2001 ), § 11-603 of the Criminal Procedure Article. 4 reduced to judgment in favor of Mr. McWilliams in the amount indicated, and the M aryland State Police also in the amount indicated an d against the defenda nt Jacquelin e Mae G arnett. The court entered the restitution obligations as money judgmen ts6 in favor of the Maryland State Police and McWilliams. 7 Subsequently, Garnett filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the District of Maryland, and she was gran ted a discha rge of her d ebts pursuant to 11 U.S.C. § 727 (2000). 8 The State filed a W rit of Garnishment of Wages in the 6 Maryland R ule 4-354 states in part: (a) Generally. A money judgment or other order for payment of a sum of certain entered in a criminal action in favor of the State, including imposition of a fine, forfeiture of an appearance bond, and adjudication of a lien pursuant to Code, Article 27A, § 7, may be en forced in the same manner as a money judgment entered in a civil action. (b) Judgment of restitution. A judgment of restitution may be enforced in the same manner as a money judgment entered in a civil action. Maryland Rule 1-202 (p) defines a money judgment as follows: Money judgment means a judg ment dete rmining tha t a specified amount of money is immediately payable to the judgment creditor . It does not include a judgment mandating the paym ent o f mo ney. 7 The Circuit Co urt s order of restitution to pa y McWilliam s is not at issue in this appeal. 8 11 U.S.C . § 727 (20 00) states in p art: (b) Except a s provided in section 523 of this title, a discharge (contin ued...) 5 Circuit Court for Wicomico County seeking to enforce the restitution judgment that was entered, and Garnett filed a reply asserting that the restitution judgment was discharged in bankruptcy. On August 15, 2003, the Circuit Court held a hearing on the motion, durin g which time the parties a greed to have th e State s writ dism issed. Thereafter, the State filed a Motion to Allow Garnishment, and during a hearing, the Circuit Court denied the motion and held that the restitution was a civ il judgmen t that could be discharged in bankruptcy because: ( 1) Gar nett wa s foun d not c riminally re sponsi ble, and, therefore, she could not be punished; (2) the restitution could be enforced as a money judgment in a civil action, and so was a civil sanction; and (3) the restitution was not ordered as a condition of probation. The lower co urt also determined that the restitution w as for a pecuniary loss; thus, the judgment could be discharged under the United States Bankruptcy Code ( Ban kruptc y Code ). The State noted an appe al to the Court of Special Appeals, and this Court issued, on its own initiativ e, a writ of c ertiorari, State v. Garne tt, 382 Md. 346 , 855 A.2d 349 (2004), prior to any proceedings in the intermediate appellate court. The State s brief presented the 8 (...continued) under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter, and any liability on a claim that is determined under section 502 of this title as if such claim had arisen before the commencement of the case, wheth er or not a pr oof of cla im based on any such debt or liability is filed under section 501 of this title, and whether or not a claim based on any such debt or liability is allowed under section 502 of this title. 6 following question for our review: Did the Circuit C ourt err as a matter of law in finding that the judgment of criminal restitution was discharged under Chapter 7 of the United States Bankruptcy Code? We conclude that the Circuit Court erred in its determination that the judgment of restitution ordered against Garnett was discharged in bankruptcy and reverse the dismissal of the State s motion to a llow garn ishment. II. Discussion The State argues that the Circuit Court erred in dismissing the motion to allow garnishment based upon an orde r of restitution a gainst Ga rnett becau se restitution ob ligations imposed in criminal proceedings cannot be discharged under the Bankruptcy Code. In the State s view, although Garnett was found not criminally responsible, she was still subject to collateral consequences for her acts, which included being ordered to pay restitution. The State maintains that restitution ordered as pa rt of a crimin al proceed ing is a criminal sanction, not a civil remedy. Thus, the State asserts that the re stitution ordered in this case was not discharged in bankruptcy and that Garnett was subject to a writ of garnishment of her wages to satisfy th e judgm ent aga inst her. Garnett, on the other hand, argues that the restitution judgment entered against her was discharged in bankruptcy and that the State s motion for a writ of garnishment was prop erly dismissed by the Circuit C ourt. According to Garnett, the judgment entered against her was not penal in nature because she was found not criminally responsible and could not be 7 punished for her conduct, and because the restitution was not imposed as a condition of probation. Because the Circuit C ourt foun d that the jud gment entered was not penal, and therefore, dischargeable, Garne tt contends that the lower co urt should be accorded deference to interpret and apply its own judgments. A. The Circuit Court found that the restitution order in this case was civil in nature, and not penal, in part because Garnett was found guilty but not criminally responsible, and therefore, could not be punished. In Maryland, a defendant may be found both guilty and not criminally responsible for a crime so that the defendant does not stand convicted of a crime, and no criminal sentence may ever be entered on the guilty verdict. Pounce y v. State, 297 Md. 264, 269-70, 465 A.2d 475, 478 (198 3). As we have stated, a plea of insanity is not that an accused is to be found not guilty of the criminal act it was proved he committed, but that he shall not be pun ished th erefor. Id. at 268, 465 A.2d at 477 (quoting Langworthy v. State, 284 M d. 588, 5 98, 399 A.2d 5 78, 584 (1979 )). The Gen eral A ssem bly, however, has not removed all consequences for committing a criminal act after a finding of not criminally responsible. A sen tencing court may order a defendant to make restitution if as a direct result of the crime or delinque nt act, [p]rop erty of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value substantially decreased . Md. C ode (195 7, 1996 R epl. Vol., 20 00 Cu m. Sup p.), Art. 2 7, § 8 807(a). 9 Defend ants subject to restitution after committing a crime include any person who has [b]een found guilty of a crime, regardless of whether the defendant has been found not criminally responsib le, M d. Cod e (1957 , 1996 R epl. Vo l., 2000 C um. Su pp.), A rt. 27, § 805A(f)(3), as was Garnett in the present case.10 Restitution imposed under Article 27, Section 807 is a criminal sanction, not a civil remed y. Grey v. Allstate Insurance Company, 363 Md. 445, 451, 769 A.2d 891, 895 (2001) (emphas is in original). Judge Wilner, writing for this Court in Grey, traced the history of restitution and ex plained that it serv es retribu tive, deterrent, and rehabilitative objectives, which are the principal functions of crim inal pun ishmen t. Id. at 459-60, 769 A.2d at 899900; see also Pete v. State, __ Md . __ , __ A.2 d __ (200 4); Anne Arundel County v. Hartford Accident Indem. Co., 329 Md. 677, 685, 621 A.2 d 427, 43 1 (1993); Songer v . State, 327 Md. 42, 46, 607 A.2d 557, 559 (1992); Lee v. State , 307 Md. 74, 78, 512 A.2d 372, 374 (1986); Coles v. State, 290 M d. 296, 305, 429 A.2d 1029, 1034 (1981). We explained that penal goals are accomplished through restitution to the extent that the defendant is forced to focus on the harm that wa s cause d to the v ictim. Grey, 363 M d. at 459, 769 A.2d at 899. Likewise, restitution is a monetary detriment to the defendant and satisf[ies] society s demand for meaningful justice, thus serving the punitive objective of the criminal system. 9 Article 27, Section 807(a) was recodified without substantive change as Md. Code (2001, 2004 Cum. Supp.), § 11-603 of the Criminal Procedure Article. 10 The issue of the constitutionality of imposing a criminal sanction upon a person found guilty but not criminally responsible under Article 27, Section 805A(f)(3), is not before us, as Gar nett has not raise d it. 9 Id. at 460, 769 A.2d at 900. A principal difference between restitution as a criminal sanction as opposed to a civil judgm ent is that in the c riminal con text, a defend ant, who is unable to pay, cannot be ordered to pay restitution; whereas, a civil judgment can be entered against one who is unable to pay. Id. at 459, 769 A.2d at 900. Accordingly, restitution imposed as part of a criminal proceeding is a form of c riminal pun ishment an d not a civil sanctio n. Id. at 459- 60, 769 A.2d a t 900. In light of this Court s holding in Grey, the lower court s finding that the restitution ordered against Garnett was civil in nature was erroneous. Even though restitution ordered in a criminal proceeding may be enforced in the same manner as a civil judgment, it does not become a civil sanction and lose its penal qualities. As we stated in Grey: The order of restitution, even when e ntered as a c ivil judgme nt, concludes only the matters that were raised or that could have been raised, in the cr iminal proc eeding. Although it may be enforced in the manner that a civil judgment may be enforced, it does not, an d cannot, e stablish civil liability for a nything beyond the matters it concludes. Id. at 451, 7 69 A.2 d at 895 . The lower court s finding that the restitution was civil because it was a direct order rather than a condition o f probation also was in correct. The Maryland Code clearly provides that restitution may be ordered against a criminal defendant either as a direct order or as a condition of pro bation, see Md. C ode (19 57, 199 6 Rep l. Vol., 2000 C um. Su pp.), A rt. 27, § 10 805A(i), 11 and as w e have of ten stated, the b est source o f legislative inte nt is the statute s plain language and when the language is clear and unambiguous, our inquiry ordinarily ends there. Drew v. First Guaranty Mortgage Corp., 379 Md. 318 , 327, 842 A.2d 1 , 6 (2003); Beyer v. Morg an State U niv., 369 Md. 335, 349, 800 A.2d 70 7, 715 (2002). The fact that the restitution judgment was a direct order, rather than a con dition of probation, is of no consequence because a direct order of restitution stands independently as a criminal sanction without the need to enforce it through a separa te sancti on. Pete, __ Md. at __, __ A.2d at __. B. Was Garnett s criminal restitution a dischargeable debt12 under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 727, which permits debts to be discharg ed after assets are liquidated and distributed to creditors? Certain debts cannot be discharged in bankruptcy and 11 Md. Code (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Art. 27, § 805A(i) stated: Judgment of restitution. Judgment of restitution means either a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order or probation. Article 27, Section 805A(i) was recodified without substantive change as Md. Cod e (2001), § 11-601(g) of the Criminal Procedure Article. 12 A discharge[able] [debt] is a release of the debtor from any fu rther person al liability for his or her pre-bank rupt cy debts. If the de btor receive s a discharg e, all a creditor w ill receive will be its pro r ata distribution even though the amount of the debt far exceeds the amount of this bankruptcy dividend. 1 D AVID G. E PSTEIN , E T A L., B ANKRUPTCY 12-13 (1992). 11 remain viable, b ecause they are ex cepted from d ischarg e. See 11 U.S.C. § 52 3 (2000). 13 Speci fica lly, Section 523(a)(7) of the Bankruptcy Code provides that a debt is not dischargea ble to the extent that such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty. 11 U.S.C . § 523( a)(7). Restitution to a governmental entity and imposed by a state crimina l court is one such debt that qualifies as non-dischargeable under Section 523(a)(7). See Kelly v. Robinson, 479 U.S. 36, 50, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986 ). In Kelly, Carolyn Robinson, the debtor, was placed on probation for five years and ordered to pay restitution to the State after she pled guilty and was convicted of larce ny in a Connecticut court for the wrongful receipt of we lfare be nefits. Id. at 38-39, 107 S.Ct. at 355, 93 L.Ed.2d at 22 1-222. Thereafter, Robinson filed a petition under Chapter 7 in the United States Bankruptcy Court for the District of Connecticut and listed the restitution obligation amon g her de bts. Id. at 39, 107 S .Ct. at 355, 93 L.Ed.2d at 222. The Bankruptcy Court granted Robinson a discharge of all of her debts, including the court ordered restitution, and subsequently, Robinson stopped makin g payments o n the restitution debt. 13 When a debt is excepted from disc harge the d ebtor rema ins obligated to pay the deb t. M ARGARET C. J ASPER, B ANKRUPTCY L AW FOR THE INDIVIDUA L D EBTOR 27-28 (1997). Section 523 of the Bankruptcy Code provides an extensiv e list of debts that are exceptions to discharge under the Bankruptcy Code, including but certainly not limited to: taxes and tax penalties, most student loans, alimony and child support, debts for certain luxury purchases, debts resulting from embezzlement or fraud, and fines or penalties, such as parking tickets, that are a ssessed by a gov ernme ntal age ncy. Id. 12 Id. After efforts were made to enforce the restitution judgment, Robinson filed a claim in Bankruptcy Court for declaratory relief that the obligation had been discha rged. Id. at 3940, 107 S .Ct. at 35 6, 93 L .Ed.2d at 222. The Ba nkruptcy Co urt held that the restitution debt was not discharged under Section 523(a)(7) of the Bankruptcy Code and ordered Robinson to pay the d ebt, id. at 41, 107 S.Ct. at 356, 93 L.Ed.2d at 222-23, a judgment which was later affirmed by the federal district court but reversed by the United States Court of Appeals for the Sec ond C ircuit. Id. at 42, 107 S.Ct. at 357, 93 L.Ed.2d at 224. The Suprem e Court, ho wever, rev ersed the S econd C ircuit Court o f Appe als and held that a state criminal restitution order is non-dischargeable under Section 523(a)(7) of the Bankruptcy Code. The Court stated that Section 523(a)(7) create[d] a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures, and protected tradition al cri minal fin es su ffic ientl y to allow restitution orders to be included within the exc eption. Id. at 51, 107 S .Ct. at 362, 93 L.Ed.2d at 230. In the Court s view, federal bankruptcy proceedings should not be used to circumvent criminal sentences imposed by state courts: Our interpretation of the Code also must reflect the basis for this judicial exception, a deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings. The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States. This Court has emphasized repeatedly the fundamental policy agains t federa l interfer ence w ith state c riminal p roceed ings. 13 Id. at 47, 107 S.Ct. at 360, 93 L.Ed.2d at 227 (internal citation omitted). The Court explained that a state crimina l court s ability to choose a combination of imprisonment, fines, and restitution most likely to further rehabilitative and deterrent goals could be compromised, if such ju dgme nts we re subje ct to disc harge in bankru ptcy. Id. at 49, 107 S.Ct. at 360, 93 L.Ed.2d at 228. Thus, the Court held that the Bankruptcy Code did not act to discharge restitution obligations payable to a governmental entity and imposed in a state criminal procee ding. Id. at 52, 10 7 S.Ct. a t 362, 93 L.Ed.2 d at 230 . Several courts interpreting Kelly and Section 523(a)(7) of the Bankruptcy Code have held that an order of criminal restitution payable to a governmental entity is exempt from discharge in bankru ptcy. See Thomp son v. Co mmon wealth, 16 F.3d 576, 587 (4 th Cir. 1994), cert. denied, 512 U.S. 1221, 114 S.Ct. 2709, 129 L.Ed.2d 836 (1994) (holding that any condition a state criminal court imposes a s part of a crim inal sentenc e is not disch argeable in bankruptcy ); U.S. v . Vetter, 895 F.2d 456, 45 9 (8 th Cir. 1990) (stating that criminal restitution orders are e xempt fro m dischar ge in bankrup tcy proceedin gs); Warfel v. City of Saratoga, 268 B.R. 205, 213 (B.A.P . 9 th Cir. 2001) (holding that because the restitution was ordered as part of a state criminal p rosecution it was exce pted from discharge in bankruptcy); In re Stieger, 159 B.R. 907, 91 3 (Bankr. W.D.Wa. 1993) (concluding that order of restitution imposed as part of a crim inal sentenc e was no n-discharg eable in ban kruptcy); Cabla v. State, 6 S.W.3d 543, 551 (Tex. Crim. App. 1999) , cert. denied, 529 U.S. 1092, 120 S.Ct. 1730, 146 L.Ed.2d 650 (2000) (holding that the Bankruptcy Code does not interfere with criminal 14 sentencing schem es ). Garnett seeks to distinguish her case from Kelly and from the holdings in these cases by arguing that the restitution in this case was not excepted from discharge because it was not a condition imposed as part of a criminal sentence and because it was ordered for actual pecuniary loss, contrary to the language of Sec tion 523(a)(7). We do not find, how ever, Garne tt s argu ments to be pers uasive . Although Kelly does stand for the proposition that Section 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence, id. at 50, 107 S.C t. at 361, 93 L.Ed.2d at 229, the Court did not limit its holding to guilty sentences. Rather, the Supreme Court in Kelly held that because restitution orders imposed in criminal proceedings are inherently penal in nature and focus on the State s interests in rehabilitation and punishment, [t]hose interests are sufficient to place restitution orders within the meaning of [Section] 523(a)(7). Id. at 53, 107 S.Ct. at 363, 93 L.Ed.2d at 231. In the case at bar, the restitution was ordered in a criminal proceeding against Garnett, which is consistent with Kelly, so that it was a non-disc hargeable debt pursu ant to Section 523(a)(7) of the B ankrup tcy Code . Garnett s argument that the restitution was discharged in bankruptcy because it was pecuniary in nature also fails. As the Supreme Court explained in Kelly, criminal restitution orders are not pecuniary because they operate to punish and rehabilitate the offender, not to compen sate the victim . Id. at 52, 107 S.Ct. at 362, 93 L.Ed.2d at 230. As a basis for its 15 conclusion, the Court stated: Although restitution does resemble a judgment For the benef it of the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose re stitution gene rally does not turn on the victim s injury, but on the penal goa ls of the State and the situa tion of the d efendan t. Id. Because the restitution ordered was not compensation for actual pecuniary loss, it was, therefore, non-dischargeable under Section 523(a)(7) of the Bankruptcy Code. Id. at 52, 107 S.Ct. at 3 62, 93 L .Ed.2d at 229. Here, the restitution ordered b y the Circuit Co urt payable to the Maryland State Police was not compensation for actual pecuniary loss becau se it was imposed as a criminal sanction for Garnett s c onduct. See Grey, 363 Md. at 459-61, 769 A.2d at 899-900. Furthermore, the Maryland State Police had no co ntrol over whether restitution would be ordered by the Circuit Court or its amount. The restitution ordered is a criminal penalty, not compensation for actual pecu niary loss; accord ingly it is excepted from discharge under Section 523(a)(7) of the B ankrup tcy Code . III. Conclusion The order of restitution in favor of the Maryland State Police that w as entered as part of criminal proceedings against Garnett was a penal sanction to which sh e was sub ject, despite a finding of guilty but not criminally responsible. Because the restitution o rdered in this case was a criminal sanction, it was not dischargable under the Bankruptcy Code. Thus, 16 the State s Motion to Allow Garnishment should have been granted. JUDGMENT OF TH E CIRCU IT COURT FOR WICOMICO COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE. 17 In the Circu it Court for W icomico C ounty IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 2004 ______________________________________ STATE OF MARYLAND v. JACQUELINE MAE GARNETT ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: December 22, 2004 I concur in the Court s Opinion and write separately only to express a caveat that has not bee n raised or addr essed in this case . As the Court points out, we made clear in Grey v. A llstate, 363 Md. 445, 769 A.2d 891 (2001) that an order of restitution entered pursuant to former Maryland Code, Art. 27, § 807 (current Crim. Proc. Article, § 11-603) is a criminal penalty, even though it could be enforced in the manner of a c ivil judgment. Under Kelly v. Robinson, 479 U.S . 36, 107 S . Ct. 353, 93 L. Ed.2d 216 (1986), such an order of restitution, when treated as a criminal penalty, is not discha rgeable in bank ruptcy un der the c urrent B ankrup tcy Code . Garnett s point is that, because she was found not criminally responsible, the order of restitution cannot be regarded a s a criminal s anction. The M aryland Leg islature seem s to have decreed otherwise. In Crim. Proc. Art. § 11-603(a), it has authorized a court to order a defendant to make restitution, in addition to any other penalty for the commission of a crime if, as a direct result of the crime, the victim has suffered certain enumerated kinds of losses. In § 11-601(e), it has defined defendant as including a person who has been found guilty of a crime, even if the defenda nt has been found n ot criminally responsible . That is the basis for the Court s conclusion that the order of restitution in this case retains its status as a criminal penalty. The Legislature has apparently authorized a court to order a not criminally responsible defendant to pay restitution. Garnett has not challenged the validity of the statutory construct that permits a court to enter a crim inal penalty against someone who has been found not criminally responsible. That authorization is certainly inconsistent with the conclusion we reached in Pouncey v. State, 297 Md. 264, 269, 465 A.2d 475, 478 (1983), ho wever, tha t a finding o f not crimin ally responsible relieves the defendant of liability for punishment under the criminal law and that [n]o criminal sentence may ever be entered on the guilty verdict . . . . Indeed, imposition of a criminal pe nalty upon a p erson fou nd not criminally responsible would raise serious Constitutional issues. Because those issues have not been raised in this case, the Court has not considered them . They most certainly do lurk, howe ver. -2-

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